Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Southern District of California Howard B. Turrentine, Senior District Judge, Presiding.
Before B. FLETCHER, T.G. NELSON and TALLMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Dario Gomez-Solano appeals his guilty plea conviction and ten-month sentence for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
Gomez-Solano contends that under Apprendi v. New Jersey, 530 U.S. 466, 490,
Page 441.
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and United States v. Nordby, 225 F.3d 1053, 1058-59 (9th Cir.2000), overruled in part by Buckland, 277 F.3d 1173, 1182 (9th Cir.2002) (en banc) (overruling Nordby 's conclusion that Congress committed drug quantity to the sentencing judge to decide by a preponderance of the evidence), 21 U.S.C. § 841 is unconstitutional. Gomez-Solano's contention, however, is foreclosed by our decision in Buckland, *1-6.
Moreover, Gomez-Solano's 10-month sentence is well below the 5-year statutory maximum for possession of an undetermined amount of marijuana with intent to distribute. See § 841(b)(1)(D); Nordby, 225 F.3d at 1059. Where a defendant's actual sentence falls below the statutory maximum for the offense to which he pleaded guilty, he is not prejudiced for purposes of Apprendi. See United States v. Scheele, 231 F.3d 492, 497 n. 2 (9th Cir.2000). Accordingly, the purported sentencing error by the district court was harmless. See United States v. Garcia-Guizar, 234 F.3d 483, 488-89 (9th Cir.2000).
AFFIRMED.